Peter Lindsay

The accused was found in the driver's seat of a heavily damaged vehicle outside a school.

Police questioned him in an ambulance without advising him of his detention or rights, and failed to address clear language barriers when providing access to counsel.

The court found significant breaches of ss. 10(a) and 10(b) of the Charter and excluded the breath test results and statements under s. 24(2).

However, based on the totality of the remaining evidence, including the unexplained collision, odour of alcohol, empty beer can, and the accused's confusion and physical state, the court found the accused guilty of impaired operation of a conveyance.

In this criminal trial for refusing to provide a breath sample after a collision, the accused sought Charter remedies including exclusion of evidence and a stay under ss. 24(2) and 24(1).

The court held that the roadside detention, handcuffing, and force used by police were reasonable in the circumstances, and found no breaches of ss. 7, 8, 9, 10(a), or 12.

The court also found no breach of s. 10(b), confirming that immediate compliance with a lawful ASD demand does not trigger prior access to counsel.

In the alternative, the court held any potential s. 10(b) breach was minimal and would not justify exclusion under the Grant framework.

This is an appeal from a conviction for impaired operation of a motor vehicle and operation of a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 mL.

The appellant raised multiple grounds of appeal alleging breaches of Charter rights, including failures to provide adequate notice of the right to counsel, failure to facilitate contact with counsel of choice, and failure to preserve evidence.

The trial judge found certain breaches but declined to exclude the breath sample evidence or stay proceedings.

The appellate court dismissed all grounds of appeal, finding the trial judge's factual findings were open to him and his legal analysis was sound.

The accused was tried on impaired operation and over 80 charges arising from being found unresponsive in a running vehicle at an intersection and later investigated at hospital.

The court found multiple connected Charter breaches, including a breath demand made without reasonable and probable grounds, arbitrary detention, failure to advise the accused of the reasons for detention and right to remain silent, and delayed and inadequate implementation of the right to counsel.

Applying the Grant framework, the court excluded the breath test results under s. 24(2) because the police conduct was serious and had a substantial impact on Charter-protected interests.

On the impaired operation count, the court held the circumstantial evidence did not exclude the plausible and reasonable possibility that a medical condition, rather than alcohol impairment, explained the accused’s symptoms.

Acquittals were entered on both charges.

The Crown brought an application to remove the defendant's counsel of record due to a conflict of interest.

The defendant and a co-accused were jointly charged with terrorism-related offences.

The counsel of record had previously represented or consulted with the co-accused, the defendant's family members, and potential witnesses in related matters.

The court found a realistic and significant risk of a future conflict of interest that could impair the counsel's duty of loyalty and effective assistance.

The application was granted, and the counsel was removed from the record.

The appellant, convicted of operating a motor vehicle while impaired by lorazepam, appealed the conviction, arguing the trial judge erred by "entering the arena" through her own questioning, misapprehending evidence, and rejecting unchallenged testimony regarding her claim of accidental ingestion due to illness, fatigue, and rushing.

The Superior Court dismissed the appeal, finding the trial judge's questions permissible for clarification, her assessment of the appellant's credibility reasonable, and her reasons for rejecting the defence sufficient.

The court affirmed that the trial judge did not misapprehend the evidence and was entitled to reject the appellant's testimony for articulated reasons, even if certain aspects were largely unchallenged in cross-examination.

The appellant appealed his conviction for impaired driving, arguing a violation of his s. 11(b) Charter rights due to unreasonable delay, particularly concerning the impact of the COVID-19 pandemic, and errors in the trial judge's assessment of evidence.

The court dismissed the appeal, affirming the trial judge's finding that the net delay of 14 months and 9 days was reasonable given the exceptional circumstances of the pandemic and the local court context.

The court also upheld the trial judge's credibility findings and assessment of evidence, finding no palpable and overriding error.

The accused, Chundi Deng, applied for a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms, alleging a violation of his right to be tried within a reasonable time under s. 11(b).

The total delay from charge to anticipated trial end was 655 days, exceeding the 18-month (547-day) presumptive ceiling for the Ontario Court of Justice set by R. v. Jordan.

The court deducted 21 days for defence delay in retaining counsel.

The Crown argued for further deductions for defence delay and COVID-19 related exceptional circumstances.

The court rejected the Crown's argument for additional defence delay, finding the defence actions legitimate.

However, the court recognized the systemic impact of the COVID-19 pandemic as an exceptional circumstance, deducting 29 days for trial scheduling delays and a further 40 days as a realistic estimate of the pandemic's impact on trial scheduling in the Scarborough Courthouse.

Despite these deductions, the net delay remained 565 days, still exceeding the Jordan ceiling.

The court found the overall delay unreasonable and granted a stay of proceedings.

The appellant appealed convictions for impaired operation and having a blood alcohol concentration over the legal limit, arguing police lacked reasonable grounds for arrest (sections 8 and 9 Charter) and that delayed advice of the right to counsel (sections 10(a) and 10(b) Charter) warranted exclusion of evidence under section 24(2).

The court found police had reasonable grounds for arrest.

While acknowledging Charter breaches due to interpreter delay, the court re-evaluated the section 24(2) analysis, finding the trial judge erred in underestimating the breach's impact but ultimately concluding that admission of evidence would not bring the administration of justice into disrepute.

The appeal was dismissed.

The offender, an off-duty police officer, was convicted of failing to stop after an accident under s. 320.16(1) of the Criminal Code.

He had collided with a motorcyclist, causing the motorcyclist to suffer severe injuries resulting in the amputation of his leg.

The offender was acquitted of impaired and dangerous driving charges.

The Crown sought a three-year penitentiary sentence, while the defence sought a non-custodial or conditional sentence.

The court found that the offender's status as a police officer and his failure to summon help were aggravating factors, but noted he was a first offender with strong community support who would likely lose his job.

The court imposed an 18-month conditional sentence, a 30-month driving prohibition, a DNA order, and a $200 victim surcharge.

The accused, Bowen Fan, was charged with impaired operation and operating a motor vehicle with excess alcohol.

The Crown conceded the impaired operation charge.

The defence brought a Charter application alleging breaches of Mr. Fan's s. 10(b) rights due to language barriers and denial of access to a third party to obtain counsel information.

The court found significant informational and implementational breaches of s. 10(b) due to the police's failure to ensure Mr. Fan understood his rights, provide an interpreter, or allow him to contact a friend for lawyer details.

Applying the Grant test under s. 24(2), the court found the seriousness and impact of the breaches outweighed society's interest in adjudication on the merits, leading to the exclusion of breath test evidence and dismissal of both charges.

The accused, an off-duty police officer, was involved in a motor vehicle collision where his SUV crossed the centre line and struck an oncoming motorcycle, causing the rider to lose his leg.

The accused drove nearly four kilometres away from the scene before stopping and did not call 911.

At trial, the court acquitted the accused of impaired driving causing bodily harm and dangerous driving causing bodily harm, finding the Crown failed to prove impairment beyond a reasonable doubt and failed to rule out a sudden tire blowout or mechanical failure.

However, the court convicted the accused of failing to stop after an accident, rejecting the defence that a concussion rendered his actions non-volitional or negated his intent to flee.

The accused was arrested for impaired driving after fleeing the scene of a serious motor vehicle collision.

The police failed to make a breath demand at the roadside and subsequently failed to advise the accused of his increased jeopardy when they learned the victim had suffered life-altering injuries.

The breath technician made a delayed breath demand at the station without providing the accused a further opportunity to consult counsel.

The court found multiple breaches of the accused's rights under ss. 8 and 10(b) of the Charter.

Applying the Grant framework, the court concluded that the cumulative impact of the breaches on the accused's protected interests warranted the exclusion of the breath test results under s. 24(2).

The accused, charged with impaired driving, brought an application for a stay of proceedings under s. 11(b) of the Charter, alleging unreasonable delay.

The court determined that the delay clock started when the information was sworn, not at the time of arrest.

After deducting delay caused by the COVID-19 pandemic as an exceptional circumstance and a period of defence delay, the remaining delay was calculated at 14 months and 9 days, which is below the 18-month presumptive ceiling.

The court found that the case did not take markedly longer than it reasonably should have and dismissed the application.

The appellant appealed his conviction for 'Over 80', arguing that the trial judge erred in failing to find a breach of his s. 10(b) Charter right to counsel, misapprehended evidence, and failed to conduct a proper s. 24(2) analysis.

The appellant claimed his right to consult a third party (his wife) regarding counsel was infringed.

The Superior Court of Justice dismissed the appeal, finding no palpable or overriding error in the trial judge's conclusion that the police provided adequate opportunity for the appellant to consult his wife and did not interfere with his right to counsel of choice.

The court also held that even if a breach occurred, the evidence would not be excluded under the Grant framework.

Vanessa Porchetta appealed her conviction for driving with over 80 mg of alcohol, arguing breaches of her s. 10(b) Charter rights and an error in relying on hearsay evidence for the alcohol standard solution.

The trial judge found two s. 10(b) breaches but declined to exclude the breath readings under s. 24(2) of the Charter, deeming the breaches technical and their impact minimal.

The appeal court upheld the trial judge's decision, finding no unreasonable factual findings or errors in law regarding the Charter analysis or the admissibility of the breath technician's evidence concerning the alcohol standard solution.

The appeal was dismissed.

The Crown sought to permit a police officer to refresh his memory using both handwritten memo book notes and a typed General Report created through an automated voicemail transcription system.

The defence objected to reliance on the General Report.

The court granted the Crown's motion, finding that the General Report was admissible as a stimulus to refresh the witness's memory because the original audio voicemail was made contemporaneously with the events, and subsequent verification did not render it impermissible for use in refreshing memory.

The appellant, De Shen, appealed his conviction for impaired driving.

The trial judge had found him guilty of impaired driving but not guilty of driving with a blood alcohol concentration over 80 mg.

On appeal, the appellant argued that his Charter rights under sections 10(a) and 10(b) were infringed, and that the trial judge erred in assessing the evidence of impairment by dismissing the possibility of illness as speculative.

The court found that the police lawfully detained the appellant under the Highway Traffic Act, suspending his s. 10(b) rights at the roadside.

It also found that the appellant failed to establish a proper evidential basis for his claim that his s. 10(b) rights were infringed at the police station regarding counsel of choice.

While the trial judge erred in law by dismissing the illness defence as speculative due to lack of evidence, the appellate court applied the curative proviso, concluding that there was no reasonable possibility the verdict would have been different given the overwhelming evidence of impairment by alcohol.

The appeal was dismissed.

The appellant appealed his conviction and sentence for child luring after communicating online with an undercover police officer posing as a 14-year-old.

The appellant claimed he knew the person was not a minor and only met them for a 'gotcha' moment.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly applied the W.(D.) framework and drew logical inferences from the text messages.

The sentence appeal was also dismissed, though the victim surcharge was set aside.

The defendant was charged with driving a motor vehicle with excess alcohol following a collision investigation in the early morning hours of December 20, 2017.

The defendant challenged the admissibility of the Intoxilyzer breath test results, alleging violations of his Charter rights under sections 7, 8, 9, and 10.

The trial judge found that the defendant's section 10(b) rights to counsel were breached because the arresting officer failed to provide the rights to counsel in a language the defendant could understand, particularly the right to counsel of choice.

Although the defendant had some English proficiency, he clearly experienced significant difficulty understanding the informational component of his rights.

The officer was aware of the language barrier but did not take adequate steps to address it, such as using available translation services.

The trial judge noted the contrast with the breath technician, who proactively arranged for interpretation services.

The trial judge also found it significant that the defendant twice requested to speak to his brother, which the officers did not follow up on, potentially indicating an attempt to exercise his right to counsel.

Applying the test from R. v. Grant, the trial judge excluded the breath test results and the defendant's utterances to the breath technician, resulting in an acquittal.